Amended Bill of Complaint.

PARTIES: 1. Mary Jane Youde. Plaintiff.

2a. George Smith,

b. Robert Henry Hurst,

c. Samuel Edward Donne.

Defendants.

SUBJECT OF TRANSACTION: In Chancery.

1. Plaintiff is the only child of Edward Youde deced. and Mary his wife (also deced.) formerly Mary Greenaway dau. of Giles Greenaway.

2. Indentures of lease and release of 13 and 14 March 1840 the release made between (1) Edward Youde (since deced).

3. Edward Youde d. July 1846. No application on made to the plaintiff for the payment of the annuity but in May 1857 the defendant George Smith commenced action v. the plaintiff on the covenants contained in the indenture of 14 March 1840 for the recovery of arrears then alleged to amount to £13,940.

4. Plaintiff appeared and pleaded (1) Non est factum (2) that the deed was obtained by fraud and (3) that no memorial was enrolled as required by the said statute 53 Geo. III.

5. Defendant George Smith took issue on the 1st and 2nd pleas and on the 3rd the defendant set out the memorial of the deed and the enrolment thereof.

6. To the last of the pleas the plaintiff rejoined by plea in bar -- and order was made that the defendant withdraw her pleas and suffer judgement for £13,940 and costs and also for ½ yrs. interest and was dated 27 Nov. 1857.

7. 28 Nov. 1857 the defendant George Smith signed judgement on said order for £14,350 and costs of suit and the judgement was registered and a writ of elegit on the judgement has since been issued by the defendant.

8. Charles Greenaway died without issue on 25 Nov. 1859 whereupon the plaintiff became entitled as tenant in tail in possession or absolutely to all the estates etc. whereof the several uses and trusts were limited and declared in her favour by the said will.

9. Soon after d. of Charles Greenaway and in Jan. 1860 the defendant George Smith filed his Bill against the plaintiff and also. v. the defendants Robert Henry Hurst, Samuel Edward Donne and against Sir William Martins, John Knowles and Richard Fosters as defendants. The said Bill stated that the defendant Robert Henry Hurst is sole legal personal rep. of Robert Hurst the surviving trustee of the will of Giles Greenaway and that Samuel Edward Donne is sole legal personal rep. of Thomas Stephens the trustee for the term of 1,000 yrs. created by the Indenture of 14 March 1840. Defendant prayed that account be taken of what was due to him for arrears and that the heredits. etc. comprised in the term of 1,000 yrs. be sold to produce the amount due and the residue secured for meeting future arrears and that it might be declared that the defendant had acquired a 1st charge on the said heredits. bequeathed by the will of Giles Greenaway and to which the plaintiff had become entitled or that he had by giving notice to the defendant R.H. Hurst acquired a priority in respect of such portions of the property as consisted of chose in action and that enquiries be made to ascertain the incumbrances on the said premises and that the priorities of the plaintiff and other incumbrances on the said trust premises be ascertain and for further relief.

10. Plaintiff impeached the validity of the alleged securities and admits that under the circumstances soe is entitled to have the alleged security of 14 March 1840 declared fraudulent and that the judgement signed by the defendant on the 28 Nov. 1857 is not binding on her and that in the event of the alleged security of 14 March 1840 being set aside the defendant George Smith ought not to be allowed to avail himself of the said judgement or to prosecute any proceedings founded thereon.

11. Plaintiff states that the alleged security of 14 March 1840 should be set aside because (1) it was one of other deeds that the plaintiff was induced to execute as surety for her father Edward Youde deced. (2) that prior to the indenture Edward Youde deeply embarrassed and took up residence abroad and the plaintiff accompanied him to Ostend and resided there with him until the plaintiff returned to England about 6 mths. before Edward Youde's death in 1846. (3) that from about 1820 when the plaintiff was 7 the plaintiff was under the influence of her father who had a temper (4) from the time of the plaintiff coming of age until his death he constantly desired the plaintiff to execute deeds which she did but the plaintiff was ignorant of the effect of the deeds. (5) James Gibbs procured the money for Edward Youde and either James Gibbs or one of his clerks would come to Ostend on business and would dine with Edward Youde and the plaintiff and after dinner the clerk would produce the deed already prepared and engrossed which Edward Youde would execute and then desire the plaintiff to do so but she did not know the contents of the deed.

(6) The plaintiff believed understood from Edward Youde that he was borrowing money on the security of some reversionary interest to which he was entitled expectant on the death of his mother and upon some other property at Plas Madoc in Wales but the last mentioned property became the subject of a suit which resulted in a decision adverse to his supposed title. (8) The plaintiff was never led to believe by Edward Youde nor by anyone else that she was making herself liable for his debts or was charging her property with the payment of any annuities.

12. During the whole of the plaintiff's stay in Ostend he was in an ill state of heath and had no one to turn for professional advice.

13. With reference to the execution of the indenture of 14 March 1840 and the indenture of 16 Nov. 1839 the plaintiff states that some time previously to these transactions George Smith had been in the habit of using James Gibbs as his solicitor and agent and especially in lending out money of the defendant at an exorbitant rate of discount and the defendant believed that the expectanties of Edward Youde were good security for the annuity and employed James Gibbs as his agent to procure the annuity from Edward Youde and it was also part of the arrangement between James Gibbs and the defendant that the plaintiff should be procured to join in these transactions as surety but the plaintiff remained ignorant of this.

14. The deed of 16 Nov. 1839 was brought over to Ostend by one of the clerks of James Gibbs already prepared and engrossed but no actual payment of the £3,200 was made, a sum of money was brought over by the clerk and handed to Edward Youde but was not retained by him and was taken back by the clerk to James Gibbs. Plaintiff charges that the sum of £435 part of the £3,200 was retained by James Gibbs for costs but no bill was delivered to Edward Youde showing the items from which the alleged costs were made up and the plaintiff charges that throughout the transaction James Gibbs acted as agent and solicitor for George Smith.

15. the transaction of 14 March 1840 was carried out similar to the one of Nov. 1839. The consideration money of £1,913.7.2. was handed to Edward Youde but the sum was immediately afterwards returned by the clerk to James Gibbs who retained £745 for alleged costs and no bill was delivered to Edward Youde of the alleged costs and the plaintiff alleges that a further sum of £52.10s. was deducted out of the consideration money and retained by George Smith without the knowledge of Edward Youde or the plaintiff for some costs or expenses.

16. Copy of the statement contained in the memorial of the said annuity deed of 14 March 1840 as to the nature of the annuity of £820.

17. Plaintiff charges that at time of execution of indenture of 16 Nov. 1839 and of indenture of 14 March 1840 the defendant George Smith knew that she was living alone with her father and was under his influence and that she was not to gain any benefit from the transactions and that the execution of the deed of March 1840 by her was obtained by fraud and the same ought to be declared void.

18. With reference to the judgement, the plaintiff at the time was without funds and was dependent on the assistance she received from her uncle Charles Greenaway and the costs in respect of the plaintiff's defence were paid by said uncle who declined to advance further monies, therefore the plaintiff had to allow the proceedings to end upon the best terms that could be obtained without obtaining the right of the plaintiff to impeach of the alleged security.

19. Since filing his bill on 31 July 1860 the defendant George Smith procured a charging order when it was stated that the plaintiff's interest in £14,857.7.6d. new 3% annuities standing in the name of Robert Hurst part of the funds subject to the trusts of the will of Giles Greenaway should be charged with the payment of £14,350 and interest thereon in the said order referred to as due on the judgement of the action of Smith v. Youde.

20. Defendant George Smith by virtue of the judgement Smith V. Youde and of the Common Law Procedure Act 1854 procured garnishee orders to be served on the plaintiff's tenants attaching all debts due from them to the plaintiff. The names of the tenants are William Cowper, Dennis Dunford, John Faulkner, Mills, John Wyatt, John Hollowell, John Miller, Joseph Stratton, Joseph Tuckwell, William Budd, Mary Lucklock and George Payne and Jonas Payne administrators of John Payne deced.

21. By subsequent orders in the matter of attachment of debt it was ordered that the garnishees should pay into the court to abide the event of the action the debt due from him or so much as might be sufficient to satisfy the judgement debt and that the judgement creditor be be at liberty to proceed against the garnishees to show cause why there should not be execution for the alleged debt or for the amount due to the judgement debtor.

22. Pursuant to the several orders the amounts due to the plaintiff in respect of the rent from the garnishees have been paid into the court except in the case of William Cowper and this has now been paid.

23. The garnishess have no defence against proceedings threatended by

24. plaintiff is advised that the defendants Robert Henry Hurst and Samuel Edward Donne are necessary parties to this suit.

25. (added in ink). Since the filing of the bill the defendant George Smith has commenced action v. the plaintiff for the recovery of £2255 in respect of arrears of the annuity of £820.

PRAYER - the Plaintiff prays -

1. That the indenture of 14 March 1840 in so far as it purports to operate as a security for payment by the plaintiff of the annuity of £820 be declared fraudulent.

2. That it be declared that under the circumstances the judgement in the action Smith v. Youde be not binding on the plaintiff and that the defendant George Smith is not entitled to derive any benefit therefrom.

3. That George Smith be restrained from issuing writs against the garnishees and from prosecuting any other orders of attachment of debt for debts owing to the plaintiff from the garnishees.

3a. (added in ink). That George Smith until the hearing of the case be restrained from prosecuting any other orders of attachment of debt for debts owing to the plaintiff from the garnishees.

3a. (added in ink). That George Smith until the hearing of the case be restrained from prosecuting the action v. the plaintiff for the recovery of the £2255 and from prosecuting any other action v. the plaintiff for the recovery of arrears of the annuity of £820 beyond the arrears comprised in the judgement of 28 Nov. 1857.

4. That George Smith be ordered to account to the plaintiff for the sum of £146.5.10d. paid to him by William Cowper.

5. That the defendant be ordered to take steps for the discharge of the charging order on the plaintiff's interest in the sum of £4,857.7.6d. reduced 3% annuities.

6. That if necessary the defendant Samuel Edward Donne be ordered to concur in all necessary acts for surrendering to the plaintiff the term of 1,000 yrs. granted by the alleged security of 14 March 1840.

7. That directions be fiven for effectuating the the above purposes.

8. That the plaintiff may have further relief as the nature of the case may require.

PLACE(S): GREAT and LITTLE BARRINGTON (Glos).